United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-40149
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL MENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-69-2
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Miguel Angel Mendez appeals his sentence following his
guilty plea conviction for importing 12 kilograms of cocaine into
the United States from Mexico, in violation of 21 U.S.C.
§§ 952(a), 960(a)(1), 960(b)(1) and 18 U.S.C. § 2. Mendez
argues that district court committed error when it sentenced him
without applying the two-level reduction of U.S.S.G.
§ 2D1.1(b)(7), Supp. to the 2000 Guidelines Manual (May 2001),
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-40149
-2-
due to Mendez’s failure to meet the safety-valve criteria of 18
U.S.C. § 3553(f), as set forth in U.S.S.G. § 5C1.2.
If a defendant with an offense level above 26, such as
Mendez, meets the criteria of U.S.S.G. § 5C1.2, a two-level
offense level decrease is warranted pursuant to U.S.S.G.
§ 2D1.1(b)(7). “A sentencing court’s findings of fact pertaining
to a [U.S.S.G.] § 5C1.2 reduction is a factual finding, which
this court reviews for clear error.” United States v. Wilson,
105 F.3d 219, 222 (5th Cir. 1997).
Sentencing Guidelines § 5C1.2(1) requires a finding that
“the defendant does not have more than one criminal history
point, as determined under the sentencing guidelines.” Mendez
does not satisfy this criterion, since Mendez was assigned three
criminal history points. Additionally, application of U.S.S.G.
§ 5C1.2 requires a finding that “the defendant was not an
organizer, leader, manager, or supervisor of others in the
offense, as determined under the sentencing guidelines. . .”
U.S.S.G. § 5C1.2(4). The district court specifically determined
that pursuant to U.S.S.G. § 3B1.1(b), Mendez was a manager or
supervisor of criminal activity, and the record supports this
determination. Therefore, Mendez fails to meet the criterion set
forth in U.S.S.G. § 5C1.2(4). Finally, application of U.S.S.G.
§ 5C1.2 requires a finding that “not later than the time of the
sentencing hearing, the defendant has truthfully provided to the
Government all information and evidence the defendant has
No. 02-40149
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concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan. . .” U.S.S.G.
§ 5C1.2(5). Although Mendez argues that he was truthful in his
debriefings with the Government, the record refutes this
argument.
Based on the foregoing, Mendez fails to meet three of the
five criteria set forth in U.S.S.G. § 5C1.2. Therefore, the
district court did not err when it sentenced Mendez without the
benefit of the two-level decrease set forth in U.S.S.G.
§ 2D1.1(b)(7).
The district court’s judgment is therefore AFFIRMED.